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F I L E DIN THE SUPREME COURT OF FLORIDA

ADVISORY OPINION TO THEATTORNEY GENERALRE: FLORIDA LOCALLY APPROVEDGAMING CASE NO. 84,165

On a Request by the Attorney GeneralInitiative Petition Circulated Under Art. XI, 5 3for an Advisory Opinion on the Validity of an

REPLY BRIEF OF GOVERNOR LAWTON CHILES AND THE FLORTDA CABINET

RICHARD E. DORANASSISTANT DEPUTY ATTORNEY GENERALFLORIDA BAR NO. 0325104THE CAPITOL, PL-01TALLAHASSEE, FLORIDA 32399-1050( 9 0 4 ) 4 8 8 - 8 2 5 3COUNSEL FOR GOVERNOR LAWTONCHILES AND THE FLORIDA CABINET

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TABLE OF CONTENTS

TABLE OF CONTENTSTABLE OF CITATIONSSUMMARY OF ARGUMENTARGUMENT

I.THE BALLOT TITLE AND SUMMARYMISREPRESENT THE EFFECT OFSUBSECTIONS (a) 3) AND (b), RELATINGRESPECTIVELY TO THE LOCATION OF CASINOS

AND LOCAL AUTHORIZATION OF CASINOS.11.

THE BALLOT TITLE AND SUMMARY AREMISLEADING IN THAT THEY FAIL TO INFORMVOTERS THAT THE IMPLEMENTATION DEADLINESET OUT IN THE PROPOSAL HAS EXPIRED.

111.

THE TEST OF THE PROPOSED AMENDMENTVIOLATES THE SINGLE-SUBJECT REQUIREMENTOF ART. XI, 5 3, FLORIDA CONSTITUTION.CONCLUSIONCERTIFICATE OF SERVICE

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TABLE OF CITATIONS

CASES PAGE (S)Askew v. Firestone,

421 So.2d 151 (Fla. 1982) 3Floridians Against Casino Takeoverv . Let's HelD Florida.363 So.>d 337 (Fia. 1978)Hill v. Milander,

7 2 So.2d 7 9 6 (Fla. 1954)In re Advisory Opinion to the Attorney General- English the Official Language of Florida,520 So.2d 11 (Fla. 1988)

In re Advisorv Osinion to the Attornev General5

- Limited Casinos.644 So.2d 71 '(Fla. 1994)In re Advisory Opinion to the Attorney General- Restricts Laws Related to Discrimination,632 So.2d 1018 (Fla. 1994)

Pope v . Gray,104 So.2d 841 (Fla. 1958)Smith v. American Airlines,

606 So.2d 618 (Fla. 1992)State v. Globe Comunications Corporation,19 F.L.W. S645 (Fla. Sup . Ct., Dec. 8, 1994)

FLORIDA STATUTES

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3

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3-4, 8

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Section 101.161, Florida Statutes (1993)Section 101.161 (1) Florida Statutes (1993)

FLORIDA CONSTITUTION

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Art, XI, 5 3, Florida Constitution 9

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SUMMARY OF ARGUMENT

The ballot title and summary for the proposed amendmentviolate the "fair notice" requirements of Section 101.161, FloridaStatutes (1993). The ballot summary states that the proposedamendment requires local government approval of all gaming.However, Subsection (a)(3) of the proposal appears to mandate theplacement, regardless of local government action, of hotel-basedcasinos in counties with over 500,000 residents.

In response, the initiative's sponsors argue that Subsection(a) 3) must be read in p a r i materia with the local approvalprovisions of Subsection (b), and that when read in this way,Subsection (a) 3) means only that where gaming is approved incounties having in excess of 500,000 residents, such gaming must belocated in hotel based casinos. In other words, there can be noriverboat-based gaming in the state's most populous counties.

Assuming that this is the correct interpretation of theinitiative, the summary still fails to disclose the initiative'skey features and effects. According to its sponsors, theinitiative actually controls the number and type of casinos thatwill be permitted in each county. The sponsors admit that thisallocation scheme is a k e y feature of the proposal. The summary,however, states only that the initiative "determines the number ofcasinos in individual counties based on the resident population of

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such counties . . . . The failure to reference limits on thetypes of casinos that may be located in each county will misleadvoters as to the proposal's primary effect and renders the summarydefective. Specifically, it will mislead voters into thinking thatboth riverboat and hotel-based casinos will be permitted in eachcounty, with only their numbers limited by population.

Subsection (d) requires that the Legislature implement theFLAG initiative by July 1, 1995. Since the next general electiondoes not occur until 1996, it is clear that compliance with thisimplementation deadline is impossible. The impossibility ofcompliance with this implementation provision raises a question asto the exact scope of the Legislature's remaining power toimplement the initiative if and when it meets with voter approval.This is certainly an issue about which the voters should beinformed prior to casting their ballots. By failing to referencethe implementation deadline, the summary fails to provide thevoters with this information, and makes a truly informed decisionimpossible.

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ARGUMENTI.

THE BALLOT TITLE AND SUMMARYMISREPRESENT THE EFFECT OFSUBSECTIONS (a)(3) AND (b), RELATINGRESPECTIVELY TO THE LOCATION OF CASINOSAND LOCAL AUTHORIZATION OF CASINOS.

Section 101.161 1) Florida Statutes, requires that the ballottitle and summary for a proposed constitutional amendment "state inclear and unambiguous language the chief purpose of the measure."Askew v. Firestone, 421 So.2d 151, 154-55 (Fla. 1982). Thecritical issue is "fair notice." In re Advisorv Oninion of theAttorney General - Restricts Laws Related to Discrimination, 632So.2d 1018, 1021 (Fla. 1994). "What the law requires is that theballot be fair and advise the voter sufficiently to enable himintelligently to cast his ballot." Askew, 421 So.2d 151, 155(quoting Hill v. Milander, 72 So.2d 796, 798 Fla. 1954).

If a ballot summary is determined to be defective, it isusually because it omits material facts necessary to make thesummary not misleading. Askew, 421 So.2d at 158 (Ehrlich, J.,concurring. In A s k e w , for instance, this Court held defective aballot summary that described an amendment as granting citizensgreater protection against conflicts of interest in governmentwithout revealing that it also removed an establishedconstitutional protection. 421 So.2d at 155-56. As the Courtnoted, the problem lay not with what the summary said, but withwhat it didn't say. Id. at 156. See also, e.g., Smith v. American

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Airlines, 606 So.2d 618, 620-21 (Fla. 1992). The problem with thisballot summary is that it both overstates and understates theeffect of the proposed amendment.

For example, this summary states that the proposed amendmentrequires local government approval of all gaming. However,Subsection (a) 3) of the amendment appears to require theplacement, regardless of local government action, of hotel-basedcasinos in counties having in excess of 500,000 residents. Theproponents of this initiative devote over five pages of theirinitial brief to explaining the "correct" interpretation of theproposal. Essentially, FLAG argues that Subsection ( a ) ( 3 ) ust ber e ad in pari materia with the local approval provisions ofSubsection (b), and that when this is done, it becomes clear thatSubsection (a)(3) merely requires that casinos approved for largercounties be located in hotels. See FLAG brief, pp. 13-18.-

As FLAG states in its brief, it is true that the Court mustuphold a proposal unless it is "clearly and conclusivelydefective." Floridians Against Casino Takeover v. Let's HelpFlorida, 363 So.2d 337, 339 (Fla. 1 9 7 8 ) . However, the Court has noduty to abandon a common sense approach to the rules of statutoryinterpretation. Nor can the Court rewrite or stretch the languageof the initiative beyond its plain meaning in order to eliminate apatent defect. See, e.g., State v. Globe Communications-Corporation, 19 F.L.W. S 6 4 5 , 647 (Fla. Sup. Ct., Dec. 8, 1994)0 - 4 -

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(Court declined to rewrite statute given its plain unambiguouslanguage). The sponsors chose the wording of the initiative--carefully and with purpose, it may be presumed--now they must livewith it.

@

Even assuming that FLAG'S interpretation of Section (a)(3) iscorrect, the summary is still misleading. According to FLAG, boththe number and type of casinos permitted in any given county willbe determined by population. Specifically, casinos authorized incounties having in excess of 500,000 residents must be hotel-based.In other words, riverboat casinos will exist, if at all, only incounties with between 200,000 and 499,999 residents. See FLAGbrief, pp. 15-16. The ballot summary does not p u t the voter onnotice of these facts. Instead, it provides only that "[tlhisamendment . . . authorizes casinos aboard riverboats and in hotelsof one thousand rooms or more; [and] determines the number ofcasinos in individual counties based on the resident population ofsuch counties . . . ."

While the ballot summary need not include reference toincidental matters, nor explain in detail everything the initiativesponsors hope to accomplish, In re Advisory Opinion to the AttorneyGeneral - English the Official Language of Florida, 520 So.2d 11,13 (Fla. 1988), the allocation scheme FLAG proposes is not merelyincidental to the main purpose of the proposed amendment. To thecontrary, the allocation scheme is a key feature of the proposeda - 5 -

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amendment, and is so integral to its purpose and effect that FLAGrefused to entrust its development to the discretion of theLegislature. (FLAG brief, p. 15)

The so-called "directive" embodied in Section (a) 3) giving"priority" to hotel-based casinos is, along with limitations on thenumber of casinos, the preeminent feature of this allocationscheme. By referencing the numerical limitation without puttingvoters on notice that the type of casinos permitted in each countyalso is a function of population, the ballot summary presents aninaccurate and misleading picture of the initiative's primaryeffect. Specifically, it will mislead voters into believing thatboth riverboat and hotel-based casinos will be permitted in eachcounty, with only their numbers limited by county population. Thesummary, therefore, is defective.

0

11.THE BALLOT TITLE AND SUMMARY ARE

MISLEADING IN THAT THEY FAIL TO INFORMVOTERS THAT THE IMPLEMENTATION DEADLINESET OUT IN THE PROPOSAL HAS EXPIRED.

The provision inthe initiative by JulLegislature's power.

Subsection d) requiring implementation of7 1, 1995, s a direct limitation on the

FLAG characterizes this provision as"incidental" to the chief purpose of the initiative, and therefore,implies that the Court need not consider its proper interpretationwhen assessing the initiative's compliance w i t h statutory and

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constitutional requirements. This requirement is far morestringent than the directive set out in the now repudiated "LimitedCasinos" proposal. In re Advisory Opinion to the Attorney General- Limited Casinos, 644 So.2d 71 (Fla. 1994). There the Legislaturewas merely directed to act at some future point to implement theAmendment,with no gambling to occur prior to July 1, 1995. Id. at7 3 .

Such a callous treatment of the people's right to be informedof a material change in a proposed amendment to our constitutionshould not be countenanced by this Court. As discussed in ourInitial Brief, the July 1995 deadline for Legislative action was akeystone to this proposal. When signing the petition to place thismatter on the November ballot a voter was signing with theconfidence that if this proposal was enacted, the incomingLegislature would have to act; not leaving the matter to somefuture assembly's whim.

Since this matter cannot be put before the voters until thenext general election in 1996, it is clear that compliance with theimplementation deadline is virtually impossible. Since theimplementation clause imposes a direct limit on the Legislature'spower, the near-impossibility of compliance raises a seriousquestion as to the exact scope of the Legislature's remaining powerto implement the initiative if and when it meets with voterapproval. This is certainly an issue about which the voters should

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be informed prior to casting their ballots. Many voters, includingthose who signed on to the initiative petition, might not vote f o ran initiative that could not be fully implemented or that mightresult in further litigation. The failure to reference thedefective implementation deadline in the summary deprives thevoters of this information. As a result, voters are deprived ofthe ability to make a truly informed decision as required byAmerican Airlines, supra.

Contrary to the position taken by FLAG, the implementationclause is not incidental to the central purpose of the proposal.Once approved, this argument will be the law of this state. Assuch, the Legislature may not ignore it or disregard it until theCourt has determined it to be invalid. As established in the caseof Pope v. Gray, 104 So.2d 841, 842 (Fla. 1 9 5 8 ) , cited by FLAG, aconstitutional provision is not "invalid" merely because it isimpossible of implementation. Rather, a provision of a stateconstitution is "invalid" only where it conflicts with some higherauthority, i.e., the United States Constitution.

There is no such conflict here. Hence, the mandatedimplementation clause, is not invalid, and may not be severed fromthe remainder of the initiative.' In short, FLAG is stuck with

It also should be noted that, if the Cou r t finds that thefailure to reference the implementation deadline renders the ballotsummary misleading, the severance clause could not be invoked to"save" the initiative. A severance clause, even if part of the- 8 -

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both the limitation it chose for its initiative, and theuncertainty it generates now that compliance with the limitation isimpossible. Such dilemma is of FLAG'S own making as it could havedrafted a less demanding, more open-ended time clause ("within oneyear of voter approval . . . I1 ) . The Governor and Cabinet urge thisCourt not to excuse this poor draftsmanship. As a member of thisCourt once wrote, it ought to be hard to amend a Constitution; thisCourt should avoid the temptation to affirmatively "cut some s l a c k "to a mistake as grave as this.

111.THE TEST OF THE PROPOSED AMENDMENT

VIOLATES THE SINGLE-SUBJECT REQUIREMENTOF ART. XI, S 3, FLORIDA CONSTITUTION.

We rely upon the arguments presented in our Initial Brief onthis point.

proposed amendment itself, cannot operate to "cure" a singlesubject or ballot summary defect. Fine v . F i r e s t o n e , 488 So. 2d984, 992 (Fla. 1984). Any change to the text of the initiativepetition would necessitate a new filing with the Division ofElections. All signatures previously gathered would be invalid,and FLAG would be required to start a new campaign. FloridaDepartment of S t a t e , Division of Elections, Advisory Opinion DE94-06 (March 24, 1994) (Changes to the text of the proposed amendmentrequire separate approval- y the Division).

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CONCLUSIONBased on the above arguments and citations of authority, t h e

Governor and Cabinet urge this Honorable Court to prohibit theplacement of this proposed constitutional amendment on any f u t u r eballot. Ream

RICHARD E . DORANAssistant Deputy Attorney GeneralFlorida Bar No. 0325104OFFICE OF THE ATTORNEY GENERALThe Capitol, P L - 0 1Tallahassee, Florida 32399-1050(904) 488-8253COUNSEL FOR GOVERNOR LAWTONCHILES AND THE FLORIDA CABINET

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CERTIFICATE OF SERVICEI HEREBY CERTIFY that a true and correct copy of the foregoing

REPLY BRIEF OF GOVERNOR LAWTON CHILES AND THE FLORIDA CABINET hasbeen furnished to ARTHUR J. ENGLAND, JR., ESQ., Greenberg, Traurig,Hoffman, Lipoff, Rosen & Quentel, P.A., 1221 Brickell Avenue,Miami, Florida 33131, Counsel for Proposition for Limited Casinos,Inc.; M. STEPHEN TURNER, P.A. and MICHAEL MANTHEI, ESQ., Broad andCassel, 215 South Monroe Street, Suite 400, Post Office Box 11300,Tallahassee, Florida 32301, Counsel for Proposition for CountyChoice Gaming, Inc.; JULIAN CLARKSON, ESQ. and SUSAN TURNER, ESQ.,Holland & Knight, 315 South Calhoun Street, Suite 600, Post Of f i c eDrawer 810, Tallahassee, Florida 32302, and CHESTERFIELD SMITH,ESQ. and MIKKI CANTON, ESQ. , Holland & Knight, 701 Brickell Avenue,Suite 3000, Post Office Box 015441, Miami, Florida 33131, Counselfor Florida Locally Approved Gaming, Inc. and Bally ManufacturingCorporation; ROBERT T. MA", ESQ., 1326 Riverside Avenue, PostOffice Box 907, Tarpon Springs, Florida 34688-0907; STEPHEN R.PlIACNAMARA, ESQ., General Counsel, No Casinos, Inc., 217 South AdamsStreet, Tallahassee, Florida 32301, and DONALD L. BELL, P.A.,Kerrigan, Estes, Ranking & McCloud, 217 South Adams Street,Tallahassee, Florida 32301, Counsel for No Casinos, Inc.; RANDALH. DREW, ESQ., 909 Haines Street, Post Office Box 270,Jacksonville, Florida 32206-6027, Co Sims; by U.S .

7-14Mail this /3- day of February, 1995RICHARD E. DORANrichard\flag\repbrief- 11 -